Fletcher on Free Speech and Tribal Law

My chapter, “Resisting Congress: Free Speech and Tribal Law,” from our book, The Indian Civil Rights Act at Forty.

Here is the abstract:

Congress codified the unsettled tension between American civil rights law and American Indian tribal law, customs, and traditions in American Indian communities by enacting the Indian Civil Rights Act (ICRA) in 1968. Concerned that individual rights were receiving short shrift in tribal courts and by tribal governments,Congress chose to apply a modified form of the Bill of Rights on tribal governments. In other words, Congress chose to impose American legal norms on Indian governments in order to protect those under tribal jurisdiction.As it had done previously in statutes such as the Indian Reorganization Act, Congress affirmatively sought to displace tribal law — and all the attendant customs and traditions, as well as Indian values — with American law. Ironically, after the Supreme Court interpreted ICRA in 1978, this law could only be interpreted and enforced by tribal courts. Tribal law and American civil rights law have been at odds in many tribal communities ever since, as tribal voters, legislatures, and courts have struggled with how (and whether) to apply American civil rights law in Indian country.

In this chapter, I explore several questions relating to tribal courts, tribal governments, and the Indian Civil Rights Act. For example, do tribal decision makers (i.e., voters, legislatures, and especially courts) deviate from the state and federal government and court interpretations of the Bill of Rights in applying ICRA; and if so, how much and in what way? Do tribal decision makers apply or incorporate tribal law, customs, and traditions into their decisions relating to civil rights under ICRA (and tribal laws that incorporate ICRA’s provisions); and if so, how? Are tribal decision makers truly bound by the provisions of the ICRA?The last question begs a final question: Does Congress have authority to force tribal decision makers how to decide civil rights disputes?

Hyde v. Fisher — Idaho Court of Appeals Keeps Inmate Religious Freedom Case Alive

I looks like this is the second time Hyde v. Fisher (here is Hyde I) has reached the Idaho Court of Appeals. This time the Court holds that a complete ban on smudging is not the least restrictive means of maintaining safety in prison under RLUIPA. Here is an excerpt:

We conclude that Hyde has shown no error in the district court’s procedure on remand. The district court correctly ruled that IMSI’s complete ban on sweat lodge ceremonies and implementation of a personal property policy does not violate Hyde’s constitutional rights or those conferred upon him by RLUIPA and FERPA. However, we conclude that IDOC has not demonstrated that completely banning smudging ceremonies at IMSI is the least restrictive means of furthering the compelling governmental interest of safety and security at the institution.

Eagle Repository Case: United States v. Friday (CA10)

In December, the Tenth Circuit will hear oral argument in the United States’ appeal of the dismissal of the prosecution of Winslow Friday for the taking of eagle parts. The district court found that the difficulty for American Indians in obtaining eagle parts using the national eagle repository permit system violated the Religious Freedom Restoration Act. Specifically, the court held that the eagle repository permit system was not the least restrictive means to protect eagles and therefore infringed on the religious freedom of Winslow Friday.

One element of the case that might make it difficult for Winslow Friday is the apparent fact that he never applied for a permit. The lower court found that the application of a permit was futile. However, some American Indians did seek and receive permits to fatally take eagles, perhaps only 1 but perhaps as many as 5.

The lower court order is here: District Court’s Order of Dismissal

The Government’s opening brief is here: US Opening Brief

Friday’s response brief is here: Friday’s Response Brief

The Government’s reply brief is here: US Reply Brief